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On April 4, the U.S. Court of Appeals for the Third Circuit decided the case of Mirabella v. Villard, et al., a civil rights case brought under 42 U.S.C. § 1983, alleging, inter alia, violations of their First Amendment rights by local officials. Although the Court of Appeals concluded that the Mirabellas adequately alleged both a retaliation claim and a violation of their right to petition, it concluded that the rights allegedly violated “were not clearly established for the purpose of qualified immunity.” The Court of Appeal reversed the District Court’s ruling on the local officials motion to dismiss with instruction to enter judgment in their favor.

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The U.S. Court of Appeals for the Fourth Circuit has decided the case of North Carolina v. Alcoa Power Generating, Inc. The Court of Appeals affirmed, in a 2 to 1 ruling, the decision of the U.S. District Court for the Eastern District of North Carolina that a relevant segment of North Carolina’s Yadkin River—on which Alcoa Power Generating, Inc. (Alcoa) has constructed and operated for many years hydroelectric dams to supply power to its neighboring aluminum smelter—was not “navigable” at the time of North Carolina’ statehood (1789). Consequently, the State could not claim title to this segment as an aspect of state sovereignty.

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In Brexit: The UK’s Great Reform Bill, Pillsbury attorney Tim Wright discusses Prime Minister May’s “notice to quit” under Article 50 and start  of what he aptly describes as the equivalent of a “difficult and protracted divorce proceedings.” The White Paper published sets out Prime Minister May’s plans for a great repeal bill, which at one strike will remove the United Kingdom from the purview of the European Court of Justice and restore the supremacy of domestic law. Currently, the European Communities Act 1972 enshrines the supremacy of European Union law in national law. That will come to an end on Brexit day, which will be 29 March 2019 unless an extension is agreed to by the EU27 and the European Parliament.

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On March 23, the Colorado Court of Appeals issued a ruling reversing the trial court and the Colorado Oil and Gas Conservation Commission which had denied the petitioners’ request that the Commission, when promulgating rules affecting oil and gas production operations and activities in Colorado, be required to consider public health and environmental conditions to be determinative. The case is Martinez, et al., v. Colorado Oil and Gas Conservation Commission. The American Petroleum Institute and the Colorado Petroleum Association were intervenors, and a large number of environmental groups supported the petitioners. Continue Reading ›

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In Potentially Costly Nuclear Rulemaking Proposed, NRC targets include oil & gas industry, cancer treatment providers, sterilization facilities and radiographers, Pillsbury attorney Jay Silberg discusses the Nuclear Regulatory Commission (NRC) staff’s recent recommendation that the NRC undertake a rulemaking requiring licensees to provide financial assurance (or set aside funds) to cover the cost of the disposition of certain Category 1 & 2 sources.

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In  Trump Jettisons Obama Climate Policies, President Trump signed a sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard, we discuss President Trump’s sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard.

Additional Source:  Executive Order Promoting Energy Independent and Economic Growth (March 28, 2017)

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UPDATE: U.S. Supreme Court asked to review feds’ prairie dog regulation

 

On March 29, in the case of People For the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., the U.S. Court of Appeals for the Tenth Circuit issued a unanimous decision that the Endangered Species Act (ESA) and its implementing regulations can, consistent with the Commerce Clause in the U.S. Constitution, regulate the “take” of the Utah prairie dog, a threatened and purely intrastate species, even when it is located in nonfederal land.

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On March 24, the Texas Third District Court of Appeals (sitting in Austin) issued an important decision regarding the application of the state’s statute of limitations in a class action lawsuit. The case is Asplundh Tree Expert Co. v. Abshire, at al. The Court of Appeals affirmed the District Court’s order denying Asplundh Tree Expert Co.’s (Asplundh) motion for summary judgment, confirming that the Texas two-year statute of limitations set forth in Tex. Civ. Prac. & Rem. Code § 16.003 was tolled by the filing of a class action, as contemplated in the 1974 U.S. Supreme Court’s decision in American Pipe and Construction Co. v. State of Utah.

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This is the first post in an ongoing series of posts on real estate and construction lending. Check back soon for more posts in our series.

In New York, contractors must be careful to file the correct type of lien to ensure they will be paid for their labor and/or materials. State law provides for two distinct liens: (1) a mechanic’s lien for labor or materials provided for private real property, and (2) a public improvement lien for labor or materials provided for public improvements. Knowing which lien applies is important at the beginning of the filing process, as there are significant differences in the coverage and requirements for each.

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In Payment Practices and Performance Reporting, New UK rules aimed at tackling late payment of suppliers and vendors will require large businesses to report on their payment practices and performance, Pillsbury partner Tim Wright discusses draft regulations published by the Department for Business, Energy and Industrial Strategy (BEIS) on February 2 requiring certain companies to publish information about their payment practices and policies, and their performance by reference to those practices and policies, and BEIS’ guidance on the regulations. The new regulations are expected to become effective on April 6, 2017.

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